News Release ~ 06/02/2008 B

Computer Policy Invades Attorney-Client Privilege

Washington, DC­ (June 2, 2008) -- The Defense Department’s new policy of requiring military defense counsel to consent to warrantless search and seizure of privileged information on their office computers and peripheral devices was condemned by the Executive Committee of the National Association of Criminal Defense Lawyers in a special resolution May 30. The committee is calling on the Secretary of Defense to rescind the directive and revise the policy to prohibit interception and seizure of attorney-client privileged information and attorney work-product, saying that the policy effectively denies military personnel their fundamental right to confidential communications with their lawyers.

The May 9 directive from the Pentagons chief information officer advises that “the U.S. Government may inspect and seize data” stored on government computers and that e-mails and data on government computers “are not private, are subject to routine monitoring, interception, and search, and may be disclosed or used for any U.S. Government-authorized purpose.”

Col. Jack B. Zimmermann, USMCR (Ret.), one of the resolution’s sponsors, said, “The men and women in the Armed Forces, who risk their lives every day to protect our system of justice, deserve at least the same degree of confidentiality in communicating with their lawyers as do civilians. Many paid for this right with blood.” Zimmermann, partner in the Houston firm, Zimmermann, Lavine, Zimmermann & Sampson, PC, is a co-chair of the association’s military law committee.

His co-chair, Lt.Col. Donald G. Rehkopf, Jr., USAFR (Ret.) explained that “[t]here is no provision in the ethics rules that bind all lawyers, military and civilian, that permit counsel to ‘waive’ the attorney-client privilege. The privilege belongs to the client, not the lawyer.” Rehkopf is with the Rochester, NY, firm Brenna and Brenna.

The Marine Corps instituted a similar policy last December, which was later rescinded. It became an issue in United States v. Tatum, a murder prosecution arising out of an insurgent ambush in Haditha, Iraq, which was called a “massacre” when women and children died in the counterattack. Defense counsel were hampered by the policy because they could not communicate or file pleadings electronically using government computers that were subject to warrantless search and seizure, and complained to the court.

Charges were dismissed on the first day of trial, rendering the defense motion for injunctive relief moot. Zimmermann was lead civilian counsel for Tatum.

“The government has no right to intrude on confidential communications or work product without a search warrant from a neutral judicial officer, based on probable cause to believe that evidence of ongoing or future criminal conduct will be found,” Zimmermann said. “That’s the only exception to the privilege rule.”

“DoD’s disclaimer that it will ‘take all reasonable steps to protect seized privileged communications and data’ is misleading and disingenuous,” Rehkopf said. “Law enforcement has no right to intrude on defense communications, research or witness preparation, without a warrant – period.”

A copy of the DOD’s May 9, 2008, memorandum can be found on NACDL’s Attorney-Client Privilege Web page, or at: http://www.nacdl.org/public.nsf/whitecollar/waiver_attachments/$FILE/DoD.pdf

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.